Concerns on new health care board raised

By Ken Dixon, STAFF WRITER

Published 1:47 pm, Friday, August 28, 2009

HARTFORD -- The state's first step toward universal health care may include a provision that exempts its board of directors from the public-disclosure and transparency laws of the Connecticut Freedom of Information Act.

Colleen M. Murphy, executive director and general counsel of the state Freedom of Information Commission, said Thursday she is concerned the SustiNet board could attempt to avoid posting meeting agendas and minutes and could even hold gatherings in private.

Gov. M. Jodi Rell on Thursday said she's also worried and will request that the two leaders of the board pledge to adhere to the openness requirements of the FOIA.

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In particular, Murphy said she's worried about the section in the enabling legislation approved during Monday's veto-override session that says the partnership board "shall not be construed to be a department or agency" of the state.

"Since the FOI Commission has jurisdiction over public agencies, if a law says this shall not be an agency of the state, the most-logical conclusion to draw is it's not subject to the Freedom of Information Act," Murphy said in a phone interview.

"Most importantly, if they choose not to have the public invited to the discussion, the effect is the meetings don't have to be open to the public; there doesn't have to be a recording of what happened at the meeting; and public won't be able to see with its own eyes the process as it evolves." The nine-member board, which will be supported administratively by the legislative Public Health Committee, will be named by legislative leaders as early as next week. The board will be led by Comptroller Nancy S. Wyman and state Healthcare Advocate Kevin Lembo.

The panel has a two-year period to plan a program of health insurance for the entire state. Gov. M. Jodi Rell vetoed the bill because its annual cost was estimated at a billion dollars a year. In her veto message, the governor also opposed the makeup of the board, which does not include state officials, hospitals or business representatives.

The Freedom of Information Act covers only state agencies and departments. "Perhaps there's a lack of understanding," Murphy said.

But Speaker of the House Christopher G. Donovan, D-Meriden, the chief proponent of universal health care, said in a Thursday interview that the SustiNet board will be as open as other state agencies or legislative committees.

"It's like any board or commission," Donovan said. "I think we made it clear. It's absolutely subject to the FOIA." He said that there will also be room on various subcommittees for the health-insurance industry, businesses and state agencies.

Rich Harris, spokesman for Rell, said Thursday that the governor was aware of the possible shortcomings in the drafting of the bill.

"Governor Rell is very concerned about the possibility that this board would be operating outside the state's Freedom of Information laws and plans to send both Nancy Wyman and Kevin Lembo a letter seeking their personal commitment that the SustiNet Partnership Board will fully comply with Connecticut's open-records law," Harris said.

Attorney General Richard Blumenthal said in a Thursday interview that upon an initial reading of the legislation, he believes that the SustiNet board would be subject to the FOIA. "Probably the FOI Commission would have some say, maybe the ultimate authority in deciding whether in fact it is subject to the Freedom of Information Act," Blumenthal said.

Blumenthal said that while the enabling statute indicates that the board "shall not be construed" as a state department could seem to exempt the board from public scrutiny, in effect it will be engaged in important public business.

"It seems to indicate it is under not FOIA, but in light of the very clear and indisputable public nature or subject matter of what the board of directors is responsible for doing and the fact that they are mostly appointees of public officials, or in fact public officials themselves, I would view it as a non-government entity performing a governmental function and therefore subject to the FOIA," Blumenthal said.

"The general public policy of the FOIA and the case law or this board's activities and authority would seem to clearly indicate that it should be subject to the FOIA statutes," Blumenthal said.